First Security Bank of Utah v. Creech

858 P.2d 958, 207 Utah Adv. Rep. 60, 1993 Utah LEXIS 51, 1993 WL 66259
CourtUtah Supreme Court
DecidedMarch 3, 1993
Docket910149
StatusPublished
Cited by13 cases

This text of 858 P.2d 958 (First Security Bank of Utah v. Creech) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First Security Bank of Utah v. Creech, 858 P.2d 958, 207 Utah Adv. Rep. 60, 1993 Utah LEXIS 51, 1993 WL 66259 (Utah 1993).

Opinions

ZIMMERMAN, Justice:

First Security Bank appeals an interlocutory order denying its motion for partial [961]*961summary judgment and granting a cross-motion for partial summary judgment filed by Orville and Ruby Creech (“the elder Creeches”) and their three children, Larry Creech, Joann Creech, and Walter Creech (“the younger Creeches”). First Security challenges the trial court’s ruling that neither the elder Creeches nor the younger Creeches defaulted on their loan agreements with the bank when the elder Creeches filed for bankruptcy and failed to make repayments during the period between the bankruptcy filing and the confirmation of the elder Creeches’ bankruptcy plan. First Security also challenges the trial court’s decision to reserve ruling on First Security’s request for attorney fees. We affirm in part and reverse in part.

The facts are not in dispute. In February of 1986, the elder Creeches entered into a series of loan agreements with First Security to fund the continued operation of their dairy farm. Larry and Joann Creech provided some of the collateral and served as guarantors on one of the loans, a commercial note. Walter Creech served as a guarantor on another loan, a promissory note pursuant to an agricultural credit and security agreement. All the loan agreements included a provision, referred to as an “ipso facto clause,” which specified that the bank could hold the Creeches in default, accelerate their monthly payments, and take immediate possession of the collateral if they filed for bankruptcy. The loan agreements also specified that the Creeches could be held in default if they failed to make the payments.

In November of 1986, the elder Creeches filed for chapter 12 bankruptcy protection and stopped making payments. During the bankruptcy proceedings, the elder Creeches and the bank entered into a stipulation that required the elder Creeches, among other things, to maintain their dairy herd at a minimum size, to maintain a certain average level of milk production, and to provide the herd with regular veterinary inspection and treatment. The stipulation provided that if the elder Creeches failed to meet these requirements, First Security would be given relief from the automatic stay imposed by the Bankruptcy Code, see 11 U.S.C. § 362, and could foreclose under the loan agreements. The stipulation further allowed the elder Creeches to make lower monthly payments than those specified in the loan agreements.

The stipulation was incorporated into the elder Creeches’ reorganization plan, which was confirmed by an amended order of the bankruptcy court on July 8, 1987. On July 20, 1987, the bankruptcy court issued another order, modifying the confirmed plan and stipulation for reasons not relevant here. Thereafter, the elder Creeches commenced making monthly payments to First Security in the amounts specified by the stipulation.

In May of 1988, while the elder Creeches’ bankruptcy action was still pending, First Security brought a foreclosure action in state district court, alleging that both the elder and the younger Creeches were in default under the stipulation because they failed to maintain the size of their herd, to maintain milk production at the specified level, and to provide necessary veterinary care. Because of this default, the bank claimed that it could proceed against the Creeches under the original loan agreements. The Creeches filed an application to remove the state court action to the bankruptcy court, but the bankruptcy court denied the application, reasoning that the issue of whether the Creeches had defaulted under the terms of the stipulation was appropriately before the state court.

In November of 1989, before the state district court took any action in the foreclosure case, the bankruptcy court dismissed the elder Creeches’ chapter 12 case without prejudice. It found that the elder Creeches had not adhered to their confirmed bankruptcy plan in that they had failed to make required payments to another creditor.

In March of 1990, First Security moved for partial summary judgment in the foreclosure action. It contended that the stipulation, bankruptcy plan, and order confirming the plan controlled the rights and duties of the parties and that under one or more of these, the Creeches had defaulted [962]*962as a matter of law, allowing it to proceed against all the Creeches. The bank also argued that damages caused by the breach could be determined as a matter of law from the evidence before the court. In response, the elder Creeches filed a cross-motion for partial summary judgment, asking the court to determine that the stipulation, bankruptcy plan, and order confirming the plan could not be enforced because the underlying bankruptcy proceedings had been dismissed. The elder Creeches further contended that the original loan documents controlled and defined the relationship of the parties, except to the extent that the payment schedule had been modified by the stipulation.

The trial court ruled in favor of the Creeches, finding that the stipulation and “resulting order” from the bankruptcy court were unenforceable because they “were not freely negotiated at arms length, and did not result in an [o]rder which otherwise could be enforceable outside the framework of bankruptcy.” The court found further that the original loan agreements “were in force and effect and the period of the bankruptcy shall not be considered to be a breach of the original terms and provisions.” The court stated that the payments made during the bankruptcy period “should be applied against the whole obligation” and that the Creeches “under this formula, will be obliged to eventually make up the difference.” The court reasoned that the parties should be returned to the same positions they had occupied prior to the bankruptcy filing, but cited no legal authority for this conclusion. The court only stated that it was relying on “principles of equity and law” with “perhaps the former overriding the latter.”

After the trial court issued its memorandum decision, First Security made a “motion for clarification.” It argued that the trial court incorrectly “assumed that, under the provisions of the Bankruptcy Code, the filing of a bankruptcy or any other default that may have occurred as a result of or during the course of a bankruptcy could not, as a matter of law, constitute a breach.” First Security also contended that if it was the trial court’s intent to apply equity, at a minimum the bank should be awarded attorney fees and costs. After a hearing, the trial court reaffirmed its previous decision and said that it was explicitly reserving the issue of attorney fees and costs for a later hearing. First Security then petitioned this court for interlocutory review, which we granted.

On appeal, the bank does not challenge the trial court’s conclusion that the stipulation and “resulting order” are void. Although the trial court’s ruling is unclear as to which “order” it was referring, it is apparent from the court’s findings and the parties’ contentions in their cross-motions for summary judgment that the court believed that any bankruptcy court orders recognizing the stipulation were unenforceable. Because First Security does not dispute the trial court’s determination on this point, we do not review the correctness of this view of the law.

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First Security Bank of Utah v. Creech
858 P.2d 958 (Utah Supreme Court, 1993)

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Bluebook (online)
858 P.2d 958, 207 Utah Adv. Rep. 60, 1993 Utah LEXIS 51, 1993 WL 66259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-security-bank-of-utah-v-creech-utah-1993.